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Huffington Post's study of the curriculum offerings in private schools that participate in state run voucher and tax credit programs has set the internet ablaze. Huffington Post identified all of the private schools that receive voucher or tax credit funding--no small task. It then collected information on the textbooks those schools use. The results were startling in many respects. The study turned up books that promote some pretty sensational ideals:

Women's right to vote and increased participation in the workforce coincided with women acting in increasingly anti-Christian ways, such was disobedience "to their own husbands.”

The books sympathize with the South in regard to the Civil War or “war between the states," as they phrase it, and while the acknowledge that slavery was likely a factor in the war, they emphasize other explanations.

These types of ideas were promoted in three particular textbooks/curriculums. The charts below reveal the frequency with which voucher and tax credit schools use these textbooks.

Increasingly forgotten in these conversations [about school choice] is that the purpose of receiving an education, at least a public education, goes far beyond the teaching of information and skills and the interests of individual students. Public education includes the transmission of social values that lead to social cohesion and the overall betterment of society. Test scores tell us nothing of these values, and private markets are ill suited to deliver them. Whereas private markets respond to consumer preferences, public education seeks to create public preferences. Additionally, given the nature of the democratic values our public education seeks to promote, individually responsive education makes little sense. Public education entails the provision of common experiences under conditions consistent with equal protection, due process, free speech, and religious neutrality. A consumer-based system allows for too much educational variation and opens the door to individual biases that are contrary to public education.

Based on their track record thus far, charters and vouchers, on the whole, are not operating in furtherance of the public good. Rather than promote the public good, they tend to promote the individual good and operate in ways that actively undermine the public good.

I further explain:

Consider, for instance, an individual-orientated education system that includes elements of school choice. Such a system potentially caters to antisocial behaviors by permitting students with shared antisocial values to choose to coalesce in particular schools or programs. Over the long term, this type of system would undermine social cohesion and counteract the effect of social pressures that might otherwise produce common values.

In contrast, many of the specific values a collective-based concept of education seeks to facilitate are those that mitigate and limit individuals' tendency to adopt antisocial or group mindsets and act on them. For instance, collective-based education promotes the individual's commitment to enhancing the public sphere and common good. Because individuals tend toward self-interest, collective-based education seeks to counteract the tendency toward self-serving interests and affirmatively promote the opposite. Unsurprisingly, collective-based education can generate significant controversy in promoting these values, as doing so only highlights the tension between competing concepts of the public good. Some theorists define the common good not as a society with an expansive public sphere but one with unfettered individual liberty. Collective-based education generally agrees that a core set of individual liberties must be protected, but collective education limits individualism at the point that it seriously threatens group interests.

This is not to say that collective-based education would deny individuals the freedom to adopt antisocial values. If our First Amendment jurisprudence teaches anything, it is that arriving at collective wisdom requires us to protect all individual's ideas, regardless of how repugnant we might find those ideas. And the Court has held that the same principles extend to public schools. Protecting individual freedom, however, is far different from requiring the state to adopt policies and structures that might facilitate and support antisocial values and behavior. At most, the state is obligated to allow individuals to opt out of the public system when their individual values are at odds with public values, but, even then, the state can place limits on the private pursuit of individual values when the private pursuits pose a significant threat to societal well being.

Thus, the irony in Huffington Post's findings is not only are these schools teaching ideas that are at odds with the justifications for providing public education, the public is actually funding these ideas. Moreover, in doing so, these programs have the potential to undermine public education itself. I argued in 2013 that these programs could not just further individual choice, but give private individuals the ability to dissent and, as a practical matter, veto larger public policy agendas. For more, see the full article.

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Derek Black

Derek W. Black is a Professor of Law at the University of South Carolina School of Law. His areas of expertise include education law and policy, constitutional law, civil rights, evidence, and torts. The focus of his current scholarship is the intersection of constitutional law and public education, particularly as...